Unlike Tim Lee, I haven't read Ben Clemens' book Math You Can't Use. Indeed, I just now heard of it for the first time. But good title! And it's a good subject for a book -- the case against software patents. This is not an issue that's on most people's radar screens, but the growth of software patents is a wholly unjustified trend that threatens to put a perpetual drag on the global economy. Maybe I'll buy the book.
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Math You Can't Use
15 May 2008 12:12 pm
Comments (27)
The book patent failure is a good well written critical overview of the patent system:
Yes. As someone in the computing profession, I wholeheartedly agree with this. When you can write some software, patent the machine-readable gobbledygook and keep the source hidden as a trade secret it's difficult to see how the patent system is helping societal advancement, which is its goal, after all.
While there are problems with software patents, I think we should be very cautious before just banning them.
When ever anyone owns property (real, personal or intellectual) there are always those complain the whole system of ownership is a drag on them. They are right. They are also blind to the bigger picture. Failure to protect legitimate property interests has bigger problems, long term, in that there is no incentive of the property owner to invest and develop the property if he cannot obtain a return on his investment. It is no surprise that there is a strong relationship between protection of property rights and long term economic growth.
Last I looked, I didnt think that those countries who had nationalized property for the "national interest" were doing so well, economically.
SJE:
All of your talk of the benefits of property rights begs the question of whether or not there is a "legitimate property interest" in ideas expressed in machine-readable form. I don't think there is.
"Math You Can't Use"? I'm glad you told us what the subject was. I would have thought for sure it was the Clinton campaign manual.
Ken: I agree that, from a policy perspective, we should investigate whether certain types of IP are "a legitimate property interest."
However, what I see is that A gets a patent, B finds it inconvenient, and argues that the whole system is broken. The main argument presented by B (and friends) is that it makes life and business difficult for B.
B has a right to complain. But should we agree with B? B is a self interested party, after all. It is all the fashion in certain circles to argue that the IP system goes too far. There are others who argue the opposite.
Rather than just declaring "its not a legit. property interest" we should leave it up to policy makers to decide what is a legitimate property interest based on sound investigation into the claims of A, B, and the community.
SJE: Exactly right. Fortunately for us, we live in a democracy where we can influence the policy makers. Bessen and Meuer, authors of Patent Failure, are against the patent system as it stands not because it is fashionable, but because their research shows that it is a net negative for the economy. Really, you should check out their argument and decide for yourself before throwing up your hands and leaving it to the policy makers.
As someone that holds a software patent, I somewhat obviously disagree.
There are stupid patents, like the "one click" Amazon patent. Then there are patents like mine, that cover really innovative ideas. The two shouldn't be conflated.
I have read Bessen and Meuer. I remain unimpressed: their argument has all sorts of holes, I dont know where to begin.
My concern is that it so easy to declare "its not a legit. property interest." But why? I can point to endless examples of people who thought that they should seize another's property because the other had an interest less than theirs. My toddler thinks his property interests are always better than others. Declaring another's interest "illegitimate" is what Mugabe does to white farmers.
I have read Bessen and Meuer. I remain unimpressed: their argument has all sorts of holes, I dont know where to begin.
My concern is that it so easy to declare "its not a legit. property interest." But why? I can point to endless examples of people who thought that they should seize another's property because the other had an interest less than theirs. My toddler thinks his property interests are always better than others. Declaring another's interest "illegitimate" is what Mugabe does to white farmers.
I'm not opposed to patents per se, but the difference between intellectual property and other types of property must be kept clear. If your neighbor walks into your garage, and drives off with our car, you are deprived of the use of your car. If you write some code or a song, and your neighbor uses the code or sings the song, you are not prevented from using the code or the song. The use of intellectual property is not zero-sum in nature, which of course doesn't prove that protecting intellectual property, and thus protecting the profitable development of it, is not often a good thing, but it really should not be viewed as being the same as other types of property.
SJE:
Last I looked, I didnt think that those countries who had nationalized property for the "national interest" were doing so well, economically.
A good point. The point of patent reform of software (or business practices) is to address the extremely broad patents the USPO is granting nowadays. The Office is short-staffed, and examiners quota for reviews leaves them without sufficient time for more than cursory prior-art lookups. This allows "patent trolls" to start suing for glaringly obvious, trivial, or commonly used algorithms and methods.
The point of patents is to encourage new inventions by giving the inventor some room to DO SOMETHING USEFUL her work, not to corner the market on - say - using shopping carts to move goods to a checkout counter.
Algorithms are already covered by copyright. Patenting serves no purpose, other than to enrich the trolls.
Ditto for patenting a business method, which can also be covered by trade secret law.
Crap. I meant "DO SOMETHING USEFUL [with] her work."
Will's comment on the distinction between IP and other property is true, but is often oversimplified.
If your neighbor walks into your garage, and drives off with our car, you are deprived of the use of your car. Sure, but not if you are not using it at the time, right. If so, why dont you have a general policy of lending your car to everyone as long as you arent using it at the time? Even better, how about I come and stay at your house. I am not depriving you of the house, am I? Do you have good HBO?
As for the code or song, the unauthorized use by another does not prevent the owner from using it. It does, however, deprive the owner of the income. If the owner is a song writer by profession, he can either go broke because everyone is using his work for free, or he can go and do something else. Work at Starbucks, whatever. Over a decade later, the very best song writers will be doing something else, and most of the new music will be endless crappy remixes.
Will:
You beat me to the punch. SJE, deploying stories of Mugabe seizing real property in a discussion of how we should treat non-rival ideas is unnecessary demagoguery. I suppose that's the natural outcome of the original sin of calling this stuff "intellectual property".
I do not think that making the argument I did is unecessary demagoguery. See my last post.
As for whether it is a property interest or not, I note that the US constitution recognizes interests in intellectual property (Art I, Sect 8), just as it recognizes interest in real and personal property, in contractual rights, and in personal liberty interests. The right to IP was inserted before the right to freedom of speech, religion, or gun ownership.
SJE:
I think you're starting to argue against strawmen now. I believe that Will and I are only raising the point that ideas are non-rival goods to dissuade unhelpful analogies with real property. The case against software patents isn't "algorithms are non-rival, therefore software patents should be abolished, QED." My case against software patents rests on claims that: (1) such patents actually retard "progress in the useful arts and sciences"; and, (2) innovative ideas that are non-trivial can be protected as trade secrets through obfuscation in machine code, copyright, and licensing.
Patents were conceived at a time when the creation of any invention meant disclosing the EXACT nature of the invention. And for things like pharmaceuticals, that still applies. However, there are other avenues of protection available for software.
And BTW, someone borrowing Will's car deprives him of use of that car via the wear-and-tear inflicted upon it. And you inviting yourself into his home is a violation of his fundamental right to privacy.
The right to IP was inserted before the right to freedom of speech, religion, or gun ownership.
To call the definition of Congress's power "to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries" a "right to IP" similar to the right of free speech and religion requires a pretty severe misreading of Art I, Sec 8. The scope of this imaginary "right to IP" is left to the discretion of Congress in their role of promoting progress. Sounds more like a privilege to me.
There is no such thing as "intellectual property" except in the sense of a "secret". If I know something you don't, it is "intellectual property" and I can sell it to you. Once I have, it is no longer my "property", it is yours and mine.
Any restriction on your sale - or giving away - of that "property" is an infringement on your liberty if not done by explicit contract - and even then, that is an attempt to overrule "property freedom" with "contract freedom" which is a net restriction on freedom.
Therefore the notion of "intellectual property" is in fact bogus. It doesn't exist except as a means of restricting the dissemination of ideas to others.
The notion that "nobody will produce anything unless they can profit from it" is bullshit. Even if it were true, it would still not justify the general enforcement by the coercive state of a law preventing people from sharing knowledge.
The alleged reason for IP law is to stimulate the production AND DISSEMINATION of new ideas. It has never been demonstrated in history that BOTH goals were achieved or even significantly influenced by such laws. What HAS been demonstrated repeatedly in history is the use of such laws to restrict both goals.
Q.E.D.
It is amusing to see SJE complaining about people thinking that somebody else is profiting in an unjustifiable manner when IP law is ALWAYS - ALWAYS - used in exactly that manner to prevent people from profiting from someone's idea. The sole purpose of IP law is precisely that purpose - to prevent people from profiting from someone's idea other than than someone.
So it is no surprise that such laws term of enforcement is constantly being extended under the bogus notion that their heirs are also justified to profit from those ideas rather than the human race itself - even while the proponents argue that the supposed beneficiary of such laws is in fact the human race.
What's wrong with this picture?
As someone once argued, the only "thief" in the "theft" of intellectual property is the intellectual property owner who has deprived the species of his idea for his own benefit.
Matt, there's a great podcast out of Stanford Center for internet and society: http://cyberlaw.stanford.edu/
The host, David Levine, I believe had Clemens on a while back. It's well worth listening to if you want to hear from the man himself but don't necessarily want to wade through his book. But the podcast often has authors or academics on discussing these kinds of issues.
SJE, at any given time, I might decide
I want to use my car, and if somebody else is using it, I can't. This zero sum aspect has no parallel in intellectual property.
Also, SJE, any space you take up in my house is space that I may want to use for another purpose at any given time. The analogy is inapt.
As for the code or song, the unauthorized use by another does not prevent the owner from using it. It does, however, deprive the owner of the income.
Not if you were never going to buy it in the first place. Then they've lost nothing at all.
And it's been found, by many entrepreneurs, that giving away their product for free entices people to pay them for it anyway, by way of supporting artists they enjoy or coders who do useful work.
There are entire business models, robust models decades old now, based on doing absolutely nothing to prevent people from copying the product wholesale, and getting paid anyway. The idea that copyright infringement is "theft" doesn't seem to hold up, in practice. Socially, almost everybody on the internet is copying whatever they can get their hands on; how can a law be just if nearly everybody doesn't think it's wrong to break it?
Sorry to all my critics, my lunch break only comes once a day. Here I am, back to get more punishment. Where to start?
1. Non-rival goods. I agree that IP is a non-rival good, and sometimes an anti-rival good. In this, it differs from other types of property.
However, the purpose of IP rights is similar to other property rights, which is to encourage investment by the owner, which would otherwise be lacking in the absence of such rights. See the tragedy of the commons. This important point seems to have alluded most commenters.
2. Analogies to personal, real property etc. Sure, the analogy is not perfect. My point, however, is that we should not be so willing to destroy IP rights any more than we should be willing to limit other property rights.
3. People giving stuff away for free. Sure, people do that all the time, and there are there is a lot of IP enforcement that seems heavy handed and counterproductive to the business of the owner. But there is a difference between the owner deciding to give it away and having another steal it.
4. "Its not theft" and the other such things as its not a big deal. I dont agree. There are a lot of different conceptual frameworks for property. Nomadic cultures have concepts of land ownership that seem strange to us. A lot of people do not accept the concept of IP. However, we do have a legal framework that regards it as property, and permits its enforcement as such.
5. Analogies to Mugabe etc. I am not saying that the person who pirates Britney's latest song is the same as Mugabe. My point is that people seem very willing to declare others property rights to be null and void, without considering the long term consequences.
Mugabe argued that the original white ownership of land was obtained through colonialism, and should be expropriated in the interests of "the people." Whatever the correctness of his argument, it didnt turn out so well. It didnt turn out so well in other cases of nationalization, either.
You can find evidence in the area of IP, although less dramatic. We are talking about Econ 101, people.
6. The constitution. Art 1 Sect 8 lists enumerated powers of the Congress. The IP rights embodied therein are, to be sure, subject to the legislature. But to characterize them as a mere privilege is, IMHO, false.
"However, we do have a legal framework that regards it as property, and permits its enforcement as such."
Appeals to existing law are circular reasoning.
Try again.
"My point is that people seem very willing to declare others property rights to be null and void, without considering the long term consequences."
And most people are willing to declare others property freedom to be null and void for their own benefit without considering the long term consequences. This is precisely the purpose of restrictive IP law.
Try again.
Appeals to existing law are not circular reasoning when others are denying the existence of such law, or the political consensus it represents. Try again to read the full thread.
Your second point makes no sense, unless it completely misunderstands the purpose of IP law.
You are obviousness not very happy with IP law cramping your business. Sorry, but join the club. Of course, if you were in the business of innovation, you might feel different.
Comments closed May 29, 2008.
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Heads in the Sand
If our Congress was the least bit interested in doing the public good, instead of passing laws like yesterday's Farm Bill atrocity, it would re-examine the entire intellectual property protection structure.
Then again, if it did so, it likely would just formulate more wealth transfers to the already wealthy. Never mind.
Posted by Will Allen | May 15, 2008 12:26 PM